In re the Probate of an Instrument Purporting to be a Codicil to the Last Will & Testament of Coryell

Majority

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In the Matter of the Probate of an Instrument Purporting to be a Codicil to the Last Will and Testament of Vincent M. Coryell, Deceased. Dominick A. Rafferty, Appellant; Helen M. Scott and Others, Respondents.

Headnote

Witt — a judgment creditor of a devisee tinder a will may contest a codicil which supersedes the will— Code of Civil Procedure, § 2514, subd.. 11, § 2617.

Under.the provisions of.section 2617 of the Code of Civil Procedure a judgment creditor of a devisee named in a will" whose interest as devisee is taken away by an alleged codicil, although not cited, is entitled to appear in the proceedings for the probate of the codicil, being a ‘ ‘ person interested ” in defeating the codicil within the meaning of this section.

Such judgment creditor is not within the exception of “a creditor,” specified in subdivision 11 of section 2514 of the Code of Civil Procedure, defining who is a “ person interested.” ,. ' .

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■' Appeal by Dominick A. Rafferty from an order of the Surrogate’s Court of the county of Tioga, entered in said Surrogate’s Court oil the 7th day of October, 1895, denying his application to be made a party to the proceeding to probate an alleged codicil to the will of Vincent Coryell, deceased.

By the last will and testament of the testator,.as admitted to probate by the surrogate of the county of Tioga January 27, 1890, E. Josephine Whitman was devisee of an interest in the real estate situate in said county, of which the testator died seized. The appellant then had, and still holds, a judgment against said Josephine, docketed in said county February 14, 1889, for $417.91, which became and is a valid lien upon said real estate so devised, and can be fully satisfied out of the same unless the. paper now offered shall be probated as a codicil to said will, in which case the said devise, to Josephine will be superseded, and the appellant’s judgment be uncollectible.

Application was made July 2, 1895, to the surrogate of said •county for the probate of said codicil, and thereupon proceedings "were instituted for the probate thereof. .The appellant was not •cited, but,, as judgment creditor of said Josephine, he thereupon •applied to the surrogate upon verified petition, alleging the facts •above set forth, for leave to appear in the proceedings and' contest the probate. The surrogate denied the application, and this appeal is from, the order of denial. It appears - that Josephine is a lunatic.

F. C. Hill, for the appellant.

Frederick Collin, for the respondent.

The appellant now has a lien upon real estate of which E. Josephine Whitman has the legal title.' It is proposed to destroy this lien by probating a codicil to the will of Josephine’s father, •Which will was duly probated five years ago. The surrogate’s order denies to the appellant leave to appear and contest the proposed probate, thus 'denying to him the right to resist at the threshold, where it can best be done, the attack lipón his lien.

Section 2617 of the Code of Civil Procedure provides : “ Any person, although not cited, who is named as devisee or legatee in the

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will propounded, or as executor, trustee, devisee or legatee in any other paper purporting to be a will of the.decedent, or who is otherwise interested in sustaining or defeating the will, may appear, and at his election support or oppose the application.”

We think the appellant is within the letter of the statute, and ■clearly within its spirit. (Lafferty v. Lafferty, 5 Redf. 326; Terhune v. Brookfield, 1 id. 220; Walsh v. Ryan, 1 Bradf. 433 .)

In Matter of Brown ( 47 Hun, 360 ) it was held that the receiver ■of the property of a judgment debtor could not contest the probate of the will of the wife of the debtor, although if probate should be denied, the debtor would come into property enough to pay his' debts. The difference between compelling a debtor to acquire property enough to satisfy his creditors, and disabling the creditor to protect the lien which he has already acquired upon his debtor’s property, is apparent.

Section 2514, subdivision 11, is cited as limiting the meaning of A “person interested.” It declares that when the expression “is used in connection with' an estate or fund (it) includes every person entitled either absolutely or contingently to share in the estate or the proceeds thereof, or in the fund, as husband, wife, legatee, next of kin, heir, devisee, assignee, grantee or otherwise, except as a creditor.” Whether a will is admitted to probate or not, does not affect the creditor of the decedent. He, therefore, need not he a party. The inclusion of the parties named is not the exclusion of those also included by the terms of section 2617 of the same chapter of the act. Section 2617, in addition to the parties therein enumerated, includes a party who is interested otherwise than are the enumerated parties, in sustaining or defeating the will. W e think under the circumstances the appellant is such a party.

The order of the surrogate is reversed j with ten dollars costs and ■disbursements against the proponent, and leave is granted to the •appellant to appear and contest the probate.

All concurred.

Order reversed, with ten dollars costs and disbursements against ■respondent, and leave granted to appellant to appear and contest the probate.

Cases cited

Lafferty v. Lafferty 5 Redf. 326 N.Y. Sur. Ct. p. 431